| PRACTICE — Claim form — Service out of jurisdiction —— Claimant seeking to serve claim on defendant in Lugano Convention country — Claim form not served in accordance with foreign law but defendant aware of claim — Whether power to make order dispensing with service — Whether exceptional case — Civil Jurisdictions and Judgments Act 1982, s 3A, Sch 3C (as inserted by Civil Jurisdiction and Judgments Act 1991, s 1, Sch I) — CPR r 6.9
Olafsson v Gissurarson [2008] EWCA Civ 152; WLR (D) 72
CA–Sir Anthony Clarke MR, Dyson and Jacob LJJ: 3 March 2008
In a truly exceptional case the court had power under CPR r 6.9 to dispense with service of a claim form in a case to which the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters applied.
The Court of Appeal so held, dismissing an appeal by the defendant, Hannes Holmsteinn Gissurarson from the order of Mackay J on 20 December 2006, that in proceedings for libel brought in England by the claimant, Jon Olafsson, service of the claim form against the defendant in Iceland be dispensed with retrospectively.
SIR ANTHONY CLARKE MR said that the claimant was entitled to serve the proceedings out of the jurisdiction in Iceland under CPR r 6.19(1) because Iceland was a party to the Lugano Convention. The English court had jurisdiction over the libel claim by reason of art 5(3) of the Convention. The claimant’s solicitors took appropriate steps to have the claim form served in Iceland, the documents were delivered to the defendant and he read and understood them, but service did not comply with Icelandic law because he was not required to sign a declaration confirming receipt. In a purely English case there was power in CPR r 6.9 to dispense with service retrospectively in exceptional circumstances: see Anderton v Clwyd County Council (No 2) [2002] 1 WLR 3174, 50, 58. This was a truly exceptional case. Considered from a national perspective the judge was entitled and correct to make the order. But the defendant submitted that CPR r 6.9 ought not to be used to assist where the claimant failed to serve the defendant in Iceland in accordance with Icelandic law. In the light of Philips v Nussberger [2008] 1 WLR 180 there was no reason why the general principles identified in the domestic law cases should not be applied to the exercise of the court’s discretion to dispense with service under CPR r 6.9, whether the purported service was invalid in England or elsewhere. Where justice required an order dispensing with service in a Lugano Convention case for the purpose of ensuring that an otherwise potential domestic time bar would not defeat the claim, there was no reason in principle why the court should not make the order sought in a truly exceptional case. There would be no prejudice to the defendant because, as here, it was almost certain that he would have received the documents in time, have understood them and decided to take no part in the proceedings for tactical reasons. Here, the documents were served upon the defendant personally in the sense of being delivered to him and he read and understood them. The only defect in the service was that he did not sign a declaration to that effect. To grant relief under CPR r 6.9 would not subvert the provisions of the Convention. Those views were expressed solely in the context of a Brussels Convention (“Judgment Regulation”) or Lugano Convention case, where the English court had jurisdiction based on the articles therein. The position might well be different in a non-Convention or non-Brussels Convention (Judgment Regulation) case, where permission was required to serve the proceedings out of the jurisdiction. The court had traditionally regarded the exercise of its jurisdiction in such a case as the exercise of an exorbitant jurisdiction: see The Hagen [1908] P 189.
DYSON and JACOB LJJ agreed.
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